Myers v Commissioner of Police, NSW Police

[2006] NSWADT 135

CITATION:	Myers v Commissioner of Police, NSW Police [2006] NSWADT 135
DIVISION:	General Division
PARTIES:	APPLICANT Paul Jason Myers RESPONDENT Commissioner of Police, New South Wales Police
FILE NUMBER:	053367
HEARING DATES:	06/03/06
SUBMISSIONS CLOSED:	03/06/2006
DATE OF DECISION:	05/09/2006
BEFORE:	Fitzgerald K - Judicial Member
CATCHWORDS:	Security Industry Act - security industry licence -grant of licence - Security industry licence - grant of licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Firearms Act 1996 Security Industry Act 1997
CASES CITED:	Achi v Commissioner of Police, New South Wales Police Service [2001] NSWADT 135 Australian Broadcasting Tribunal v Bond (1999) 170 CLR 321 Comalco Aluminium (Bell Bay) Ltd v O’Connor & Ors (1995) 131 ALR 657 Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 Forbes v Commissioner of Police, New South Wales Police Service [2005] NSW ADT 151 Haining v Commissioner of Police, New South Wales Police Service [1999] NSWADT 6 Hamed v Commissioner of Police, New South Wales Police Service [2001] NSWADT 148 Henry v Commissioner of Police, New South Wales Police Service [2003] NSWADT 45 Hughes & Vale Pty Limited v State of New South Wales (1955) 93 CLR 127 IJ v Commissioner of Police, New South Wales Police Service [2003] NSW ADT 230 Infarinato v Commissioner of Police, New South Wales Police Service [2004] NSWADT 43 Jasmin v Commissioner of Police, New South Wales Police Service [2001] NSW ADT 45 Johnson v Commissioner of Police, New South Wales Police Service [2001] NSWADT 185 McDonald v Director General of Social Security (1984) 1 FCR 354 Saadieh v Director General Department of Transport [1999] NSWADT 68 Saliba v Commissioner of Police, New South Wales Police Service [2002] NSWADT 55 Sobey v Commercial Private Agents Board [1979] 222 SASR 70 Toleafoa v Commissioner of Police, New South Wales Police Service [1999] NSWADTAP 9 Wilkinson v Commissioner of Police, New South Wales Police Service [2002] NSWADT 59 Wilson v Commissioner of Police, New South Wales Police Service [2002] NSWADT 181 Yaghi v Commissioner of Police, New South Wales Police Service [2001] NSWADT 91
REPRESENTATION:	APPLICANT K Stewart, barrister RESPONDENT R Burdick, agent
ORDERS:	The decision of the Commissioner of Police, New South Wales Police Service to refuse to grant Mr Myers application for a Class 1ABC security industry licence under the Security Industry Act 1997 is affirmed..

Background

8 On 5 September 2005, Mr Myers’s application for a Class 1ABC security industry licence was refused under clause 15(3) of the Security Industry Act 1997 on the basis that granting the licence would be contrary to the public interest.

9 On 18 October 2005 Mr Myers applied to the Tribunal for a review. This was after the decision had been confirmed on internal review on 26 September 2005, both on the public interest ground and under section 15(1)(a) of the Security Industry Act 1997 on the basis that he was not a fit and proper person to hold the class of licence sought.

10 The facts are not in dispute between the parties. It is common ground that on 4 May 2004 Mr Myers appeared at Hornsby Local Court in respect of four charges of the offence “class A motor vehicle exceeding the speed by more than 45 kilometres” as well as “driving a vehicle recklessly/furiously or in speed/manner dangerous”. Mr Myers was sentenced to periodic detention for six months commencing 14 May 2004 and was disqualified from driving for three years commencing 4 May 2004. Additionally, he was fined for not obeying the direction of the police and driving with a defaced or illegible number plate. His periodic detention finished on approximately 13 November 2004. He has not had any further convictions since that time.

11 The NSW Police Service “Criminal History – Bail Report” record and Traffic Record Reports were in evidence as were the Police Facts Sheets relevant to the offences. In summary, the facts surrounding the offences are as follows. The Applicant had been seen on the Roads and Traffic Authority Camera Unit in the Sydney Harbour Tunnel in the early hours of the morning driving at excessive spends with his cycle registration plate partially obscured on four occasions between 23 January 2004 and 6 February 2004. On 16 February 2005, Police Operation “Knieval” was conducted in the northbound Sydney Harbour Tunnel. Fully marked police vehicles were set up in the tunnel and on the Warringah freeway at North Sydney. Police observed a cycle exceeding the speed limit and the driver wearing a back-pack recognisable from the Roads and Traffic Authority Camera Unit. The cycle number plate was obscured but for two numbers. Mr Myers slowed as he approached police and then accelerated to avoid arrest though he was later arrested. Mr Myers did not take issue with any of this material.

12 Counsel for Mr Myers presented some additional personal material about Mr Myers and his employment as well as his education and current financial position. Mr Myers gave some short evidence about his employment history.

Applicant’s Case

13 In written submissions the Applicant acknowledged that the criminal record of a person is relevant to the assessment of whether that person is a “fit and proper” person to hold a security licence, but the primary contention advanced on his behalf is that breaches of the law or convictions for offences do not automatically result in a finding of not being a fit and proper person. In that regard Mr Myers relies on Yaghi v Commissioner of Police, New South Wales Police Service [2001] NSWADT 91 and Wilkinson v Commissioner of Police, New South Wales Police Service [2002] NSWADT 59.

14 In Yaghi the Tribunal did acknowledge that contravention of the Firearms Act 1996 did not automatically render a licensee not to be fit and proper (see paragraph 27) and did find that the offences alone in that case were not a sufficient basis to draw the conclusion that the Applicant was no longer fit and proper. However, each of those cases were in relation to failure to properly store firearms and involved facts significantly different to those before me.

15 Relevantly in Yaghi the Tribunal found that the Applicant’s actions did not in any way compromise the safety of the public, that there was nothing in the evidence to suggest that the Applicant would commit the same offence again or that the Applicant posed any other threat to the community so far as his fire arm licence was concerned (see paragraph 48). In Wilkinson the Tribunal found that the Applicant was at the time suffering from a mental illness and there was psychiatric evidence before the Tribunal that he was no longer suffering from the matters that led to the breach of the act in question (see paragraph 27).

16 The second aspect to the Applicant’s case is that minor speeding offences do not go to the issue of whether a person is fit and proper to hold a security licence. He points to two cases Forbes v Commissioner of Police, New South Wales Police Service [2005] NSWADT 151 and Hamed v Commissioner of Police, New South Wales Police Service [2001] NSWADT 148 to support this argument. In each case the speeding issue was not the basis on which the licence application had been refused and for this reason did not form part of the primary reasoning of the Tribunal.

17 In Forbes the key issue for the Tribunal’s consideration was the provision of false information and in Hamed the decision turned on the Applicant resisting arrest rather than on the minor traffic incident that preceded it. I note also in relation to Forbes that several years had elapsed in between the offence and the licence refusal, the Tribunal accepted Mr Forbes’ contrition in relation to the offence and was satisfied that there was little likelihood that he would re-offend. Mr Forbes also provided a reference in his support (see paragraphs 19-20).

18 In Hamed the Commissioner’s decision to revoke Mr Hamed’s firearm licence was affirmed by the Tribunal. I do not see either case as supporting Mr Myers’s position and in any event it is difficult to see on what basis it can be put for the Applicant that the traffic offences of which he is being convicted were minor, particularly in circumstances where he has served a custodial sentence for them.

19 The third aspect of the argument for Mr Myers is that it is not in the public interest for Mr Myers to have his security licence revoked. In this regard Counsel for Mr Myers relied on Infarinato v Commissioner of Police, New South Wales Police Service [2004] NSWADT 43. In that case the decision of the Commissioner was affirmed and Mr Infarinato’s application under the Security Industry Act 1997 was refused.

20 Further Mr Infarinato was disqualified from driving for twelve months and received a fine, he was not subject to periodic or other detention. Mr Myers’s Counsel argued that the offences were primarily speeding offences and that as they were commenced in the Sydney Harbour Tunnel (a one way area) in the early hours of the morning, when traffic could be expected to be and was light, no actual danger was posed. He did concede in written submissions that there was potential danger to other road users.

21 The Applicant finally relies on the fact that the police took no action for 16 months during which time he continued to work within the security industry, that he has not been convicted of a criminal offence and that he has not breached the Security Industry Act itself. He also put that it has been some 14 months since he had been convicted and that he needed his licence in order to be able to work.

22 Counsel for the Applicant pointed to four cases where the Tribunal set aside the Commissioner’s decision involving considerations of fit and proper persons and/or public interest, namely: Saliba v Commissioner of Police, New South Wales Police Service [2002] NSWADT 55; Achi v Commissioner of Police, New South Wales Police Service [2001] NSWADT 135; Henry v Commissioner of Police, New South Wales Police Service [2003] NSWADT 45; and Johnson v Commissioner of Police, New South Wales Police Service [2001] NSWADT 185.

23 However, each of those decisions turn on their own facts which are different to those currently before the Tribunal and none are determinative of Mr Myers’s application. Relevantly, in Saliba there was no public safely issue involved as the relevant offence was social security fraud. In that case the Tribunal noted that the sentence imposed was relatively lenient and several positive references were provided in evidence (see paragraphs 55 and 64). I note Mr Myers provided a curriculum vitae but no references.

24 Henry involved an assault of a child but the Tribunal found that there was no evidence to suggest that in his role of holding a security industry licence he would have any custody or control over children or that as the holder of a security licence that he had ever acted inappropriately in respect of children or people generally (see paragraph 31).

25 In Achi the Tribunal found there was no evidence to suggest that the interest of the community and those of Mr Achi would be in conflict again as the failure to meet firearms storage responsibilities was an exception, a one-off incident which was a foolish error of judgement (see paragraphs 44 and 54). Johnson similarly involved a firearms storage offence, but it was in relation to the storage of a firearm by a third party not the Applicant and the Tribunal found the Applicant did not know of that conduct (see paragraph 22).

Respondent’s Case

26 The Respondent’s submissions mistakenly refer to those provisions of the Act relevant to revocation of a licence, however, the hearing proceeded on the basis that the Commissioner had made a decision to refuse an application as is reflected by the submissions of the Applicant and the internal review decision.

27 The Respondent’s case is primarily based on the seriousness of the offences, the fact that Mr Myers served periodic detention in relation to them and that insufficient time has passed since the offences occurred in 2004 such that he should be allowed to hold a security industry licence. The Respondent also pointed to the fact that Mr Myers has had no opportunity to re-offend because he is disqualified from driving until May 2007.

28 The Commissioner argued that it was not in the public interest for Mr Myers to hold a Class 1ABC licence because of the issues of public safety surrounding his offences. The Commissioner pointed to the offences as demonstrating Mr Myers’s disregard for the law and the safety of others such that he was not a fit and proper person to hold a security industry licence.

29 The Commissioner also relied on the circumstances surrounding the convictions as being relevant as well as the activities for which Mr Myers’s fitness and propriety are being assessed. See Wilson v Commissioner of Police, New South Wales Police Service [2002] NSWADT 181 at paragraph 28 and Haining v Commissioner of Police, New South Wales Police Service [1999] NSWADT 6 at 47.

Relevant Law

30 The role of the Tribunal is to determine whether, having regard to the underlying facts in the matter and the applicable law, the decision of the Commissioner is the correct and preferable one, see Section 63 Administrative Decisions Tribunal Act 1997. The Tribunal undertakes a review of the merits of the original decision and is obliged to reconsider all of the material first considered, together with any other relevant material so as to confirm the original decision, vary it, or set it aside and substitute another. (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77).

31 The Tribunal is to make its own decision and there is no presumption that the decision of the Commissioner is correct (Section 63(1) of the Administrative Decisions Tribunal Act; McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357.)

32 Section 15(3) of the Security Industry Act 1997 provides that the Commissioner may refuse an application for a security licence if the Commissioner considers that the grant of the licence would be contrary to the public interest. Section 15(1)(a) of the Security Industry Act 1997 provides that the Commissioner must refuse to grant a security licence if the Commissioner is satisfied that the applicant is not a fit and proper person to hold the class of licence sought.

33 The concept of public interest was described as “inherently broad” by the Appeal Panel in Toleafoa v Commissioner of Police, New South Wales Police Service [1999] NSWADTAP 9 at 25. See also Comalco Aluminium (Bell Bay) Ltd v O’Connor & Ors (1995) 131 ALR 657 at 681:

“The purpose of the reference to public interest is to ensure that private interests are not only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner’s consideration. The effect of the reference is to amplify the “scope and purpose” of the legislation”.

34 Further, in Infarinato (at paragraph 18) the Tribunal stated that

“…public interest in the context of section 15 (3) of the Security Industry Act 1997 requires paramount consideration be given to public safety”.

35 The term fit and proper is not defined in the Security Industry Act 1997 but the reasoning in Australian Broadcasting Tribunal v Bond (1999) 170 CLR 321 has often been cited by this Tribunal. In Bond at 63 Chief Justice Mason said:

“The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring a person whose fitness and propriety are under consideration”.

36 Further, in Jasmin v Commissioner of Police, New South Wales Police Service [2001] NSW ADT 45 at 33ff citing Hughes & Vale Pty Limited v State of New South Wales (1955) 93 CLR 127 at 156 it was said that fit and proper involves three things, honesty, knowledge and ability.

37 Hughes & Vale suggests there is a strong connection between dishonesty and unfitness but does not preclude a person convicted of a crime of dishonesty from [e]ver [sic] again being a fit and proper person. Walters J in Sobey [v Commercial Private Agents Board [1979] 222 SASR 70] observes that a criminal record is germane and crucial in determining the question of a person’s fitness but does “not go so far as to say that one criminal offence must necessarily deprive a person of that fitness…” (see Achi at paragraph 42). These statements would apply similarly to traffic offences in circumstances of dishonesty.

38 In Forbes v Commissioner of Police, New South Wales Police Service [2005] NSW ADT 151 at 16 the factors identified in Saadieh v Director-General Department of Transport [1999] NSWADT 68 at 17 were found readily adaptable to determining a person’s fitness and suitability to hold a security licence. These included:

the nature, seriousness and frequency of any criminal offences for which the Applicant has been arrested or convicted;

the nature, seriousness and frequency of any complaints made against the Applicant;

the Applicant’s reputation in the community; and

the likelihood that the Applicant will re-offend, be the subject of further complaints or commit further traffic offences.

39 In assessing the last factor, the length of time since the offences were committed and the circumstances in which they were committed is relevant as is the applicant admitting responsibility and showing remorse as well as any efforts of the applicant to rehabilitate and any change in the applicant’s circumstances such as increased support from others including professional service providers.

40 As stated in IJ v Commissioner of Police, New South Wales Police Service [2003] NSW ADT 230 at 27:

“…fit and proper takes its meaning from its context. A higher standard is applicable to licensees within the security industry because of the special role it plays in ensuring public order is maintained, in safeguarding community assets and private property and in ensuring that the public and public venues are safe” See also Toleafoa (No 2) v Commissioner of Police, New South Wales Police Service [2000] NSW ADT 48 and Sitotaw v Commissioner of Police, New South Wales Police Service [2006] NSW ADT 96 at 35.

41 The circumstances surrounding the convictions are relevant as are the activities for which Mr Myers’s fitness and propriety are being assessed. See Wilson, Haining and Sitotaw above. The activities that Mr Myers would be authorised to undertake with a Class 1ABC security industry licence include guarding and protecting property, acting as a bodyguard and acting as a crowd controller or bouncer.

Decision

42 The correct and preferable decision is that of the Commissioner’s delegate namely that Mr Myers’s application for a Class 1ABC Security Licence be refused as it is not in the public interest for him to hold such a security licence and he is not a fit and proper person to do so.

43 I do not agree with the characterisation of Mr Myers’s offences as mere or minor driving offences with no actual danger to the public. The potential impact on the public safety was significant and not answered by the fact that the offences occurred in the early hours of the morning. I have also taken into account the apparent disregard for the law and authority demonstrated by Mr Myers’s actions, particularly in circumstances where some effort had gone to partially cover his cycle plate and where he sought to evade arrest. In these circumstances Mr Myers’s interest in working in the security industry and his employment difficulties in the absence of holding a security industry licence do not outweigh the public interest in having confidence in security industry licensees.

44 Further Mr Myers was convicted of a serious offence and was subject to an order for periodic detention for a period of six months. In these circumstances I do not accept the argument by Mr Myers’s Counsel that traffic offences should be distinguished from criminal offences and breaches of the Security Industry Act 1997 itself. Mr Myers demonstrated dishonesty and disregard for the law in partially covering his licence plate and in evading arrest. For those reasons at this time Mr Myers is not a fit and proper person to hold a security industry licence. Counsel for Mr Myers points to the fact that Mr Myers has not re-offended. However, in my view there has been insufficient time since the conviction for that to be determinative, particularly in circumstances where he remains disqualified from driving.